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The patent lobby tried to sneak in software patents through the back door, by claiming that it was only about harmonization, that the directive wouldn't change anything, etc, etc. They failed.

The issue has led to the most intensive lobbying campaign ever in Brussels (from both sides). Whatever their position on the issue "as such" may be, there is not a single member of the European Parliament who now thinks that this is "just a small technical matter that can safely be left to the patent experts to decide on".

If the patent lobby wants to continue working for the legalization of patents on software and business methods (and they will), they will have to engage in a serious debate about the benefit/harm of such patents. And since they don't really have any arguments that can stand scrutiny in daylight, they will have a very difficult time.

Sure, the FFII would have preferred a directive that reaffirmed the ban on software patents in Article 52 [european-p...office.org] of the European Patent Convention, and led to greater harmonization in Europe. Alas, that didn't happen, because the patent lobby got cold feet and preferred to kill the directive rather than risk a vote in Parliament that they would probably have lost.

But at least we didn't get a bad directive that wiped out Article 52 and forced national parliaments to introduce software patents against their will. The situation now is that software patents are illegal in Europe (as they always have been according to the EPC), but that we still have a European Patent Office that needs to be reined in so that it starts to follow the law.

But the law remains unchanged, and computer programs and methods of doing business are not considered patentable inventions.

Today was a great day in the battle for a free and open information infrastructure, and for a favorable business environment in Europe for enterprises that use or produce software.

Although this definitely counts as a victory, it's not the best of all possible outcomes.That would have been having the right amendments accepted, turning a bad law into a good one. (And having the law in place for all of the EU would have meant that it'd be impossible for the big software lobby to still push this through in individual countries, something which they're now likely to try.)

The fact that the law was rejected rather then modified means that the existing patents are still in a legal grey area - look forward to a lot of pressure being put on national governements to pass legislation.

The UK PTO in particular has quite a hard on for patenting, and it is a UK Labour MEP who has been pushing hardest for patents.

The vote to scrap the bill was passed by a margin of 648 votes to 14, with 18 abstentions.

That's a pretty big majority. To be honest, I expected the bill to slip through, or at least be a pretty close call either way based on what people have been telling me about the responses they have recieved from their MEPs.

I realise this wasn't really the best outcome, but it's a damn sight better than seeing that brutal directive sneak it's way into EU law.

What have you been hearing from people about their MEPs? I wrote to the seven MEPs who represent my area (Scotland) and had replies from four (IIRC). All the replies were against the directive, one of them strongly (and optimistically) so.

I sent an e-mail to my MP using http://www.writetothem.com/ [writetothem.com] and received a personalised letter on House of Commons letter header paper. My MP is Michael Jack and this is his response (typed out for your visal digestion):

Dear Mr Palastanga,

Thank you so much for your email of 21 June and for the care that you have taken to lay out in clear terms your concerns about the application of patent law within the European Union to software.

The picture you paint has a parallel. In, for example, the radio telecommunications business there are numerous examples of multinational companies who have attempted to control the development of new standards in the industry to the detriment of small innovative European based companies who, as you rightly observe, are the engine rooms of new concepts and technologies.

I will certainly make representations on your behalf both at a national and European level to alert key decision makers to your concerns and seek their assurances that in future work in this area they will fully reflect upon the very important points you raise in your email. As soon I as I have further news I will, of course, write to you again.

Yours sincerely

The Rt Hon Michael Jack MP

OK, sure, I didn't personally stop the directive - but I have a little faith restored in politics now I have had a personal response from a real MP.
Well done to all of the FOSS projects, developers and end users who have helped raise awareness about Software Patents.

Yep. To expand further, the situation was:* passing the patent law as it was: BAD* passing the parliament's version: GOOD* not passing anything: bearable

As it looked likely that the GOOD guys were getting close to victory, all the people formerly supporting the BAD option decided to vote for the NOTHING option as a better outcome than having the parliament's version approved. And I guess the GOOD guys saw they didn't have quite enough votes to force their version through so they went for the NOTHING vote too.

That's why the margin was so large.

So while it's better than it could have been, it's not a major victory. The state of software patents in Europe remains basically undefined as neither the law version in favour of software patents nor the version against software patents was approved. So look forward to lots more legal arguments in the years ahead.

On the positive side, it shows that the good guys *almost* won a complete victory. So maybe next time....

European laws and regulations are clear at the moment: software patents are not allowed. That means in any country.

The "harmonization" (both within the EU and with WIPO) arguments are falacies the pro-swpat crowd used to push their agenda.

The only harmonization that would have occurred if the commission's version had passed would have been between the law and current big-business and EPO practice, the latter having overstepped its authority and redefined what the law means to them to grant the former the patents they seek. Unfortunately judges and jurys tend to care more about what the law says than about what vested interests want it to mean. Hence this directive project...

I get the feeling this is a war that will continue for as long as American corporations have software patents. Can this rulling be used to restart the debate in the US? What is the point of patents if they can only be enforced in one market (all be it a VERY large market)?

Back in March, in the week that Microsoft successfully lobbied the EU Council of Ministers to oppose the EU Parliament's version of the directive, and import the US software-patent regime to Europe, guess what else they did.

A mere four days after trying to foist software patents on Europe, they announced that the US system needed to be reformed.
Of course what they had in mind is not necessarily what the rest of us want - though they are aware of some of the problems. They suggested:

lowering the quantity and increasing the quality of tech patents

minimizing litigation

"harmonizing" international patent treaties - to recognise their patents, perhaps

and making it easier for smaller inventors to file patents more easily

But it's interesting that Bill Gates recognised publicly that if the current patent regime had been in place when Microsoft was young, they never would have made it!

I sent a few letters to my representatives and now I'd like to check out if they are true to their word or not. Did they vote the way they said they would.I searched some on the webpage but couldn't find any list on this.Anyone know where I can find it so that I decide on who will get my vote next time?

"Differences exist in the protection of computer-implemented inventions offered by the administrative practices and case law of the different member states"

and then

"Therefore, the legal rules governing the patentability of computer-implemented inventions should be harmonised so as to ensure that the resulting legal certainty and the level of requirements demanded for patentability enable innovative enterprised to derive the maximum advantage from their inventive process and provide an incentive for investment and innovation"

The original idea was a good one. As originally amended, the directive harmonised the various country's positions on software patents by ruling them out in no uncertain terms. However, it got hijacked by the software patent lobby who "un-amended" it to allow the possibility of software patents back in.

Daniel Hannan (Conservative) - for the legislation, claiming problems in US are exagerated and there is little evidence of large companies using patents against smaller ones

Nirj Deva Dl (Conservative) - for the legislation, though at the end states he will insist on a 3 year 'review' clause

Edwards McMillan-Scott (Conservative) - for the legislation, repeating many points above. States that the legislation does not affect the development of open source software.

Nigel Farage (Independence Party) - against the legislation, saying it benefits multi-nationals over the SMEs.

Ashley Mote (independent candidate) - against the legislation. Strong words and even if the legislation passes he suggests battling it through UK parliament.

Peter Skinner (Labour) - against the legislation. Very well informed as to EU parliamentary positions and he VERY clearly states why Labour is against software patents. Talks about Open Source, and even says he is supporting a UK campaign for a defense fund to protect small companies from litigation abuse by "dominant market players".

So it appears from my responses that the Conservative party are for software patents, and everyone else against. Can anyone else who received replies from their MPs attach a summary below mine. It will provide a useful resource for which way to vote at the next European parliamentary elections.

Please, mod parent up.
Sure, this might hurt for some patriotic people, and some won't even see the truth in it, but I'm sure this guy get's support from a lot of people all over the world, including the US.

The council is composed of the ministers of each member states. So to say it is undemocratic is the same as saying the elected governments in each state is undemocratic.

The commission is more like the civil service in member states, it's members are apointed by the member states governments. I do not know of any country where the civil service is elected. This is why the commission hasn't been given the powers to bring in laws on its own, with out the aproval of the council and the European parliment.

The EU is as (or more) democratic than it's member states. The bigest problem is some times goverments say one thing at home and vote the oposite in Europe and then try to say Europe is imposing something on them.

The European Patent Convention from the 80s already prohibits patents on "programs for computers". The catch is that the EPO doesn't follow it, although it should.

Doesn't that provide a slam-dunk defense for anyone accused of infringing a software patent? It seems that if you were sued for infringement you could just point out to the court that the patent was erroneously issued. After a couple such cases, the precedent would be firmly established and future defendants would hardly have to do more than show up.

Further, it would seem to deter holders of such invalid patents from pressing their claims, because pressing a claim would just get the patent invalidated. Since a valid but unenforceable patent is a (very) little bit more useful than an invalidated patent, holders would have to think twice about filing "harassment" suits that they know they'll lose.

Actually the commision is more than the civil service. All legislative initiative lies with the commision, not the council or the parliament. Furthermore, although the commisioners are appointed by the government in each country (whatever that happens to be at the date every 5 years where the commision is re-appointed) they are not representing neither the country nor the government that appointed them in any way. That is in my mind the biggest flaw of the european system as it is. Too much of the early footwork is taking place in the commision, which is outside democratic control (direct or indirect). In my view this is upside down. Legislative initiatives should come from the parliament, with the commission then ironing out the kinks, and with the council as the last rubber stamp.

I would absolutely love to know who the 14 "yes" voters where! Surely that information _should_ be availble since the people doing the voting are not the general public, but are people who are ment to be representing us!!

The council consist of ministers from the local governments, who are appointed by the prime minister, who are elected by a majority of the parliament, whose members are elected by the people.

The commission consists of people apointed by the local governments.

In both cases the best we can hope for is a tripple indirect democracy.

This is ok as long as the directly elected representives can propose and reject legislation. This is the case in the national parliaments, but in the EU parliament they cannot propose legislation, and the rules have deliberately made it very difficult for them to reject legislation. This is actually the first time the parliament have managed to get enough votes to reject a law.

You can download the full European Parliament press conference after the vote with this torrent [thepiratebay.org] (AVI file (DIVX), 48 minutes).

Magnet URI for Azureus (remove the space before the last two chars):

magnet:?xt=urn:btih:Y4PBCQWFLXEPSTSTNVRW536VAKTZKM PL

It's very interesting because it shows that the MEPs really know what this is all about and most of them have a position surprisingly similar to the FFII [ffii.org]!
Josep Borrell (EP President) and Michel Rocard (MEP) speak very clearly about what's wrong with software patents, the Council of the European Union, the European Commission, Microsoft, etc.

Unfortunately the first 4 minutes are only translated in Italian, but all the important things are in English.

Please after completing the download continue to seed as long as possible.

Now that this directive has been defeated, now is the time to write congress and get them to think - if the EU has voted against this, perhaps it's time they take alook at our own system and engage in reform.

Especially if presented as a case for helping small businesses (the engine that drives the economy) it seems like at least a few people in congress would be willing to champion a second look at the mess we have today, when presented with some rational arguments why they might want to roll back the power of software patents as they stand.

This further helps the EU as well, as it turns the battle into one of multiple fronts instead of just letting pro-patent people focus on the EU until they break.

The posters who claim that software is fundamentally mathematical are entirely correct.

The fact that there are many layers of abstractions and interfaces between the world of pure mathematics and your daily work involving computers (programming, playing games, MP3's, whatever) does not change this fact. That these abstractions allow software to be used by people with no understanding of mathematics does not mean that software (and the inner workings of computers in general) is not mathematical "under the hood". Those programs are all bits. So are the graphics in those games. So are those MP3's. They are all being manipulated according to mathematically-defined rules.

People can certainly cook without knowledge of chemistry but this doesn't change the fact that cooking *is* chemistry, albeit in a high-level and abstracted form. Maybe I am an idiot, but I don't think this statement doesn't make me one.

And let's not lose sight of the topic here: patents.

Let's take your cooking analogy further. What if you could patent cooking methods? What if you were a baker who was put out of business because you were sued by someone who held a patent on a method of raising bread, and that patent was so broad that it covered the actual underlying *chemical processes* involved? Not just a patent on a particular bread oven (a physical invention), but the actual process...

A cooking patent could turn the whole chemical industry upside-down!;)

*That* is the danger with pure software patents. By allowing patents that cover software you are in reality allowing mathematical concepts to be patented. And allowing "ownership" of mathematics could have far reaching implications on almost every aspect of our daily lives.